Baum v. State, No. 875S184

Docket NºNo. 875S184
Citation345 N.E.2d 831, 264 Ind. 421
Case DateMay 03, 1976
CourtSupreme Court of Indiana

Page 831

345 N.E.2d 831
264 Ind. 421
Edwin Paul BAUM, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 875S184.
Supreme Court of Indiana.
May 3, 1976.

[264 Ind. 422]

Page 832

David M. Adams, Castor, Richards & Adams, Noblesville, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted by jury of murder in the second degree 1 and was sentenced to life imprisonment. His appeal to this Court presents seven issues:

1. Constitutionality of the grand jury composition.

2. Constitutionality of the petit jury composition.

3. Admissibility into evidence of testimony objected to as hearsay.

4. Admissibility into evidence of a preautopsy photograph of the decedent.

5. Admissibility of opinion testimony from the police officers concerning the sanity of the defendant.

[264 Ind. 423] 6. Sufficiency of the evidence.

7. Correctness of certain instructions.

ISSUE I.

Under this assignment, the defendant charges that persons over sixty-five years of age were, at the time the indictment was found, systematically excluded from grand jury service in Marion County. There is nothing in the record before us to

Page 833

so indicate, other than the statement to that effect in the motion to correct errors. Assuming such to be fact, however, we do not see any likelihood of partiality emanating therefrom, and we are aware of no case suggesting such. The defendant has cited us to Shack v. State, (1972) 259 Ind. 450, 288 N.E.2d 155 for the proposition that the major requirement should be that the system of selection is not arbitrary. We do not view the exclusion of a particular group as being arbitrary, however, if there is some logical reason for such exclusion. In fact, in that case it was disclosed that the primary concern of the jury commissioners was that the people drawn for the panel were between the ages of twenty-one and sixty-five.

ISSUE II.

The defendant sought a special venire to include persons upon the petit jury who were not registered voters, alleging that he was not a registered voter and that the statute 2 [264 Ind. 424] which requires jurors to be registered voters denied him his constitutional right to a jury of his peers.

To restrict jury service to a special group or to exclude identifiable segments playing major roles in the community cannot be squared with the constitutional concept of a jury trial. It was so stated in Taylor v. Louisiana, (1975) 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, 698. But the selection of petit jurors from the rolls of registered voters has never been thought to violate this principle. United States v. Lewis, (3d Cir. 1973) 472 F.2d 252; Taylor v. State, (1973) 260 Ind. 264, 295 N.E.2d 600. We are not cognizant of any prejudice in our society against those persons who elect not to participate in the election processes which conceivably could impart jury bias against an accused who happened to be among them.

ISSUE III.

Referring to preceding testimony by the witness to the effect that the defendant had told her he was going to take the decedent to the hospital, the prosecutor asked the witness, 'And when was that, that he stopped the car?' The witness answered: 'It was after he was supposed to have stabbed her.' The defendant moved to strike the answer as hearsay, and the motion was overruled.

The answer may have been subject to a motion to strike in that the witness did not speak from first-hand knowledge. This question was not raised. The statement, however, was not hearsay which, under our rules of evidence, is an extrajudicial assertion offered into evidence to show the truth of matters asserted therein and thus resting for its value upon the credibility of the out-of-court asserter. Harvey v. State, (1971) 256 Ind. 473, 476, 269 N.E.2d 759. It is apparent that the defendant objected to the suggestion that he had stabbed the victim. However, [264 Ind. 425] the answer was not offered as evidence that he

Page 834

had. Rather, it was evidence that someone other than the witness had so accused him.

ISSUE IV.

The defendant also contends that a pre-autopsy photograph showing the nude body of the decedent from just below the waist upward should have been excluded. The picture showed a dark spot above the left breast, the location of the fatal wound. This picture was relevant to show the cause of death, and it was not unduly gruesome under Carroll v. State, (1975) Ind., 338 N.E.2d 264.

ISSUE V.

The defendant next asserts that proper foundations were not laid for the lay opinions of sanity given by police officers Ashton and Stout.

Officer...

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93 practice notes
  • Wooten v. State, No. 1-1180A322
    • United States
    • Indiana Court of Appeals of Indiana
    • March 31, 1981
    ...that a juror be a voter is not constitutionally infirm. McPherson v. State, (1978) Ind.App., 383 N.E.2d 403; Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d 831. A jury selection system which excludes from jury service all persons who do not own real property is, prima facie, systematic disc......
  • Andrews v. State, No. 1-1185A295
    • United States
    • Indiana Court of Appeals of Indiana
    • March 31, 1987
    ...jurors from registered voters is permissible. Lamar v. State (1977), 266 Ind. 689, 696, 366 N.E.2d 652, 656; Baum v. State (1976), 264 Ind. 421, 424, 345 N.E.2d 831, 833; see also Moore v. State (1981), Ind.App., 427 N.E.2d 1135, 1138, trans. denied. In order to establish a prima facie viol......
  • Works v. State, No. 775S167
    • United States
    • April 28, 1977
    ...existence of each element of the crime charged beyond a reasonable doubt, the verdict will not be disturbed. Baum v. State, (1976) Ind., 345 N.E.2d 831, and cases there ISSUE II On the day prior to the date set for trial, the trial judge received, by mail, a request from the defendant, pro ......
  • Bond v. State, No. 577S309
    • United States
    • Indiana Supreme Court of Indiana
    • April 25, 1980
    ...supports the jury's finding on each of Page 820 the elements of the crime charged beyond a reasonable doubt. Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d The evidence when viewed in such a light discloses that early in the morning on May 10, 1976, Wilma and Reynaldo Rosado were hitchhikin......
  • Request a trial to view additional results
93 cases
  • Wooten v. State, No. 1-1180A322
    • United States
    • Indiana Court of Appeals of Indiana
    • March 31, 1981
    ...that a juror be a voter is not constitutionally infirm. McPherson v. State, (1978) Ind.App., 383 N.E.2d 403; Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d 831. A jury selection system which excludes from jury service all persons who do not own real property is, prima facie, systematic disc......
  • Andrews v. State, No. 1-1185A295
    • United States
    • Indiana Court of Appeals of Indiana
    • March 31, 1987
    ...jurors from registered voters is permissible. Lamar v. State (1977), 266 Ind. 689, 696, 366 N.E.2d 652, 656; Baum v. State (1976), 264 Ind. 421, 424, 345 N.E.2d 831, 833; see also Moore v. State (1981), Ind.App., 427 N.E.2d 1135, 1138, trans. denied. In order to establish a prima facie viol......
  • Works v. State, No. 775S167
    • United States
    • April 28, 1977
    ...existence of each element of the crime charged beyond a reasonable doubt, the verdict will not be disturbed. Baum v. State, (1976) Ind., 345 N.E.2d 831, and cases there ISSUE II On the day prior to the date set for trial, the trial judge received, by mail, a request from the defendant, pro ......
  • Bond v. State, No. 577S309
    • United States
    • Indiana Supreme Court of Indiana
    • April 25, 1980
    ...supports the jury's finding on each of Page 820 the elements of the crime charged beyond a reasonable doubt. Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d The evidence when viewed in such a light discloses that early in the morning on May 10, 1976, Wilma and Reynaldo Rosado were hitchhikin......
  • Request a trial to view additional results

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